Opinion
No. CV 06-1157-PHX-DGC (JRI).
May 12, 2006
ORDER
Plaintiff, currently confined in FCI-Terre Haute, Indiana, has filed a pro se complaint pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), concerning Defendant's seizure of his automobile, cargo trailer, and the contents of his cargo trailer. Because Plaintiff's Complaint involves state, rather than federal actors, the Court will construe the Complaint as having been brought pursuant to 42 U.S.C. § 1983. However, because Plaintiff has not paid the $350.00 civil action filing fee, nor filed a proper Application to Proceed In Forma Pauperis, nor filed his Complaint on a Court-approved form, the Court will dismiss his Complaint without prejudice and with leave to amend, and provide him with an opportunity to file an amended complaint on a Court-approved form and either pay the $350.00 filing fee or properly apply to proceed in forma pauperis. A. Application to Proceed In Forma Pauperis and Payment of Filing Fee
A prisoner must pay the $350.00 civil action filing fee either in a lump sum or, when granted the privilege of proceeding in forma pauperis, incrementally pursuant to 28 U.S.C. § 1915(b)(1). To apply to proceed in forma pauperis, the prisoner must submit an affidavit of indigence and a certified copy of his trust account statement for the six months preceding the filing of the Complaint. See 28 U.S.C. § 1915(a)(1) and (2). He must include statements from each institution where he was confined during the six months preceding the filing of the Complaint. 28 U.S.C. § 1915(a)(2). To assist prisoners in meeting these requirements, the Court requires use of a form application under Local Rule of Civil Procedure (LRCiv) 3.4(a).
After proper in forma pauperis application has been made and, if granted, the Court will assess an initial partial filing fee equal to 20% of either the average monthly deposits or the average monthly balance in Plaintiff's account, whichever is greater. 28 U.S.C. § 1915(b)(1). The initial partial filing fee will be collected when funds exists. 28 U.S.C. § 1915(b)(4). The remaining part of the filing fee is made in monthly payments equaling 20% of the preceding month's income credited to an inmate's account, until the entire filing fee is paid in full. 28 U.S.C. § 1915(b)(2). The agency having custody of Plaintiff will be ordered to forward payments to the Clerk of Court each time the amount in the account exceeds $10.00. Id. Declaration not on Court-Approved Form and Fails to Comply With Statute
Plaintiff has filed a "Declaration in Support of Motion to Proceed In Forma Pauperis." He has not used the Court-approved form, and he has not submitted a certified six-month trust account statement. In light of these deficiencies, the Court will deny the document without prejudice and with leave to amend. Plaintiff will be permitted 30 days to file a complete in forma pauperis application. Plaintiff must use the current Court-approved form. He must fill out the form completely, including the Consent to Collection of Fees From Trust Account and the Certificate of Correctional Official as to Status of Applicant's Trust Account. Plaintiff must also submit his certified six-month trust account statement. To assist Plaintiff, the Court will direct the Clerk of Court to send Plaintiff a current Court-approved form for an in forma pauperis application. In lieu of applying to proceed in forma pauperis, Plaintiff may submit the $350.00 filing fee. B. Complaint not on Court-Approved Form
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)(2).
LRCiv 3.4(a) requires in part that "[a]ll complaints and applications to proceed in forma pauperis by incarcerated persons shall be signed and legibly written or typewritten on forms approved by the Court and in accordance with the instructions provided with the forms."
Plaintiff's Complaint is not on a Court-approved form as required by LRCiv 3.4(a). Plaintiff's Complaint will therefore be dismissed without prejudice, with leave to amend, in order for Plaintiff to file an amended complaint on a Court-approved form. To assist Plaintiff, the Court will direct the Clerk of the Court to send Plaintiff a current, Court-approved form for filing a complaint pursuant to 42 U.S.C. § 1983.
Plaintiff is cautioned that if he fails to file his amended complaint on the Court-approved form included with this Order, it will be stricken, and the action dismissed without further notice to Plaintiff.
Plaintiff is advised that the amended complaint must be retyped or rewritten in its entirety on the court-approved form and may not incorporate any part of the original Complaint by reference. Any amended complaint submitted by Plaintiff should be clearly designated as such on the face of the document.
Plaintiff is also reminded that in a First Amended Complaint, he may only include one claim per count. The "one claim per count" rule is set forth in the form Complaint and accompanying instructions, and is a requirement imposed by the Local Rules of this Court. See LRCiv 3.4(a) (complaint must be in accordance with the instructions provided with the form).
An amended complaint supersedes the original complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the original pleading is treated as nonexistent. Ferdik, 963 F.2d at 1262. Thus, causes of action alleged in an original complaint which are not alleged in an amended complaint are waived. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
C. Warnings 1. Address Changes
Plaintiff must file and serve a notice of a change of address 10 days before his move is effective. See LRCIV 83.3(d). Plaintiff shall not include a motion for other relief with his notice of change of address.
2. Copies
Plaintiff must submit an additional copy of every original motion or other document filed for use by the District Judge or Magistrate Judge to whom the case is assigned. See LRCiv 5.4. Failure to comply with this requirement may result in the motion or document being stricken without further notice to Plaintiff.
3. Possible dismissal
Plaintiff is warned that if he fails to timely comply with every provision of this Order, including these warnings, this action will be dismissed without further notice. See Ferdik, 963 F.2d at 1260-61 (district court may dismiss action for failure to comply with any order of the Court).
IT IS THEREFORE ORDERED THAT:
(1) Plaintiff's Complaint (U.S.D.C. document #1) is DISMISSED WITHOUT PREJUDICE, WITH LEAVE TO AMEND. Plaintiff shall have 30 days from the filing date of this Order to file an amended complaint on a complete Court-approved form.
(2) Plaintiff's Declaration in Support of Motion to Proceed In Forma Pauperis (U.S.D.C. document #3) is DENIED WITHOUT PREJUDICE, WITH LEAVE TO AMEND. Plaintiff shall have 30 days from the date this Order is filed to either pay the $350.00 filing fee or to properly apply to proceed in forma pauperis.
(3) The Clerk of Court shall enter a judgment of dismissal of this action without prejudice and without further notice if Plaintiff fails to comply with this Order.
(4) The Clerk of the Court shall provide Plaintiff with current Court-approved forms for filing a complaint pursuant to 42 U.S.C. § 1983, and for filing an Application to Proceed In Forma Pauperis by a Prisoner (Non-Habeas).
INFORMATION AND INSTRUCTIONS FOR A PRISONER FILING CIVIL RIGHTS COMPLAINT IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA I. General Information About the Civil Rights Complaint Form: A. The Form. The civil rights complaint form is designed to help prisoners prepare a complaint seeking relief for a violation of their federal civil rights. Local Rule of Civil Procedure 3.4(a) requires that prisoner civil rights complaints be filed on the court-approved form. Your complaint must be typewritten or legibly handwritten. All information must be clearly and concisely written, only in the space provided on the form. If needed, you may attach no more than fifteen additional pages of standard letter size paper to continue any part of the complaint. You must identify which part of the complaint is being continued and number all pages.B. Your Signature. You must sign the complaint. Your signature constitutes a certificate that: 1) you have read the complaint; 2) to the best of your knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and law; and 3) it is not being filed for any improper purpose. Please review Rule 11 of the Federal Rules of Civil Procedure. Rule 11 provides for the imposition of sanctions if the complaint is signed in violation of the Rule.
C. The Filing Fee. You must pay the $350.00 filing fee. If you are unable to pay the filing fee when the complaint is filed, you may request leave to proceed in forma pauperis. Please review the "Information for Prisoners Seeking Leave to Proceed with a (Non-Habeas) Civil Action in Federal Court In Forma Pauperis Pursuant to 28 U.S.C. § 1915" for more information.
D. Court Divisions. If you resided in Maricopa, Pinal, Yuma, La Paz, or Gila county when your rights were allegedly violated, you should file your complaint in the Phoenix Division of the court. If you resided in Apache, Navajo, Coconino, Mohave, or Yavapai county when your rights were allegedly violated, you should file your complaint in the Prescott Division of the court. If you resided in Pima, Cochise, Santa Cruz, Graham, or Greenlee county when your rights were allegedly violated, you should file your complaint in the Tucson Division of the court. See LRCiv 5.1(a) and 77.1(a).
You should mail THE ORIGINAL AND ONE COPY of your complaint with the $350.00 filing fee or the application to proceed in forma pauperis to:
Phoenix Prescott Divisions: OR Tucson Division:
U.S. District Court Clerk U.S. District Court Clerk U.S. Courthouse, Suite 321 U.S. Courthouse, Suite 1500 401 West Washington Street, SPC 10 405 West Congress Street Phoenix, Arizona 85003-2119 Tucson, Arizona 85701-5010
E. Certificate of Service on Defendants. You must furnish the opposing party or their attorney with a copy of any document you submit to the court (except the initial complaint and application to proceed in forma pauperis). Pursuant to Rules 5(a) and (d) of the Federal Rules of Civil Procedure, each original document (except the initial complaint and application for leave to proceed in forma pauperis) must include a certificate of service on the last page of the document stating the date a copy of the document was mailed to the opposing party or their attorney and the address to which it was mailed. Any document received by the court which does not include a certificate of service may be stricken. A certificate of service should be in the following form:
I hereby certify that a copy of the foregoing document was mailed this __ day of (month) , (year) , to: Name: ______________________ Address: ___________________ Attorney for Defendant(s)/Respondent(s)
_____________ (Signature)
F. Original and Judge's Copy. You must furnish an original and one copy of any document submitted to the court. You must furnish one additional copy to the clerk if you wish to have a file-stamped copy of the document returned to you. All copies must be identical to the original.
G. Exhibits. You should not submit exhibits with the complaint. Instead, the relevant information should be paraphrased in the complaint. You should keep the exhibits to use to support or oppose a motion for summary judgment or at trial.
H. Change of Address. You must immediately notify the clerk and the opposing party or their attorney in writing of any change in your mailing address. Failure to notify the court of any change in your mailing address may result in the dismissal of your case.
I. Amended Complaint. If you need to change any of the information in the initial complaint, you must file an amended complaint. The amended complaint must be written on the court-approved civil rights complaint form. Rule 15(a) of the Federal Rules of Civil Procedure allows you to file one amended complaint prior to any defendant filing an answer. After any defendant has filed an answer, you must file a motion for leave to amend and lodge a proposed amended complaint. Local Rule of Civil Procedure 15.1(a)(2) prohibits any amended pleading from referencing any prior pleading. Further, any allegations or defendants not included in the amended complaint are considered dismissed.
J. Letters and Motions. It is generally inappropriate to write a letter to any of the District Judges, Magistrates Judges, or the staff of any of the judicial officers. The appropriate way to communicate with these persons is by filing a written pleading or motion.
II. Completing the Civil Rights Complaint Form:
HEADING:1. Your Name. Print your name, prison or jail inmate number, and mailing address on the lines provided.
2. Defendants. Print the names of each of your defendants. If you name more than four defendants, you should print the name of one defendant and "see additional page for defendants" in the space provided. On the additional page you must list the names of all of the defendants. This additional page should be inserted after page 1 and numbered as page "1-A" at the bottom of the page. The initial complaint must contain the names of all of the parties (plaintiffs as well as defendants) in the heading (or on the additional page if more than four defendants). See Rule 10(a) of the Federal Rules of Civil Procedure.
3. Jury Demand. If you want a jury trial, you must write "JURY TRIAL DEMANDED" on the line below "CIVIL RIGHTS COMPLAINT BY A PRISONER." Failure to do so will result in the loss of the right to a jury trial. A jury trial is not available if you are seeking only injunctive relief.
Part A. JURISDICTION:
1. Nature of Suit. Mark whether you are filing the complaint pursuant to 42 U.S.C. § 1983 for state, county, or city defendants; "Bivens v. Six Unknown Federal Narcotics Agents" for federal defendants; or "other." If you mark "other," identify the source of that authority.
2. Plaintiff. Print all of the requested information on the spaces provided. Identify the institution and city where the alleged violation of your rights occurred.
3. Defendants. Print all of the requested information about each of the defendants in the spaces provided. If you are naming more than four defendants, you must provide the necessary information about each additional defendant on a separate page. Label the page(s) as "2-A," "2-B," etc., at the bottom of the page and insert the additional page(s) immediately behind page 2.
Part B. PREVIOUS LAWSUITS:
You must identify any other lawsuit you have filed in either state or federal court while you were a prisoner. Print all of the requested information about each lawsuit in the spaces provided. If you have filed more than three lawsuits, you must provide the necessary information about each additional lawsuit on a separate page. Label the page(s) as "2-A," "2-B," etc., at the bottom of the page and insert the additional page(s) immediately behind page 2.
Part C. CAUSE OF ACTION:
You must identify what rights the defendant(s) violated. The form provides space to allege three separate counts (one violation per count). If you are alleging more than three counts, you must provide the necessary information about each additional count on a separate page. Number the additional pages "5-A", "5-B", etc., and insert them immediately behind page 5. Remember that you are limited to a total of fifteen additional pages.
1. Counts. You must identify which civil right was violated. YOU MAY ALLEGE THE VIOLATION OF ONLY ONE CIVIL RIGHTS CLAIM PER COUNT.
2. Issue Involved. Check the box that most closely identifies the issue involved in your claim. YOU MAY CHECK ONLY ONE BOX PER COUNT. If you check the box marked "Other," you must identify the specific issue involved in the space provided.
3. Supporting Facts. After you have identified which civil right was violated, you need to state the supporting facts. Be as specific as possible. You must state what each individual defendant did to violate your rights. If there is more than one defendant, you need to identify which defendant did what act. You also need to state the date(s) on which the act(s) occurred if possible.
4. Injury. State precisely how you were injured by the alleged violation of your rights.
5. Administrative Remedies. Exhaustion of administrative remedies is a prerequisite to filing a civil rights complaint. 42 U.S.C. § 1997e requires prisoners to exhaust the available administrative remedies before being allowed to file a civil rights action. Consequently, you must disclose whether you have exhausted the inmate grievance procedures or administrative appeals for each count in your complaint. If one of your counts is exempt from the grievance procedures or administrative appeals, fully explain the exemption on the lines provided.
Part D. REQUEST FOR RELIEF:
Print the relief you are seeking in the space provided.
SIGNATURE:
You must sign your name and print the date you signed the complaint. Your signature must be an original signature, not a photocopy.
FINAL NOTE
You should follow these instructions carefully. Failure to do so may result in your complaint being stricken or dismissed by the court. All questions must be answered concisely in the proper space on the form. If needed, you may attach no more than fifteen additional pages. The form, however, must be completely filled in to the extent applicable. If you attach additional pages, be sure to identify which section of the complaint is being continued and number the pages.
ATTACHMENT